Appeal from the Orders entered in the Court of Common Pleas of Philadelphia County, Criminal Division, Nos. 83-910687 and 83-07-0007.
Robert M. Lipshutz, Philadelphia, for appellant (at 1252 and 1254).
Jane C. Greenspan, Assistant District Attorney, Philadelphia, for appellee (at 1252) and for Commonwealth, appellee (at 1254).
Wickersham, Brosky and Tamilia, JJ. Brosky, J., concurring.
[ 345 Pa. Super. Page 515]
These consolidated appeals are from the lower court Orders granting the forfeiture to the Commonwealth of gambling devices and denying the return of them to appellants.
The facts of these cases are identical. On May 10, 1983, Philadelphia police seized coin-operated electronic video poker machines from Jarrett's Lounge. The Commonwealth moved to have the machines forfeited under 18 Pa.C.S.A. § 5513(b).*fn1 Appellants filed answers to the Commonwealth's
[ 345 Pa. Super. Page 516]
petition in the form of a Petition for Return of Property. On February 1, 1984, the lower court found these machines to be gambling devices per se as the machines had both a "knockdown" switch and "meter" to record the number of games knocked down, following the Supreme Court's decision and rationale in Commonwealth v. Two Electronic Poker Game Machines, 502 Pa. 186, 465 A.2d 973 (1983). Stays were granted, and reconsideration was denied following an evidentiary hearing. These appeals followed.
Appellants concede the propriety of the lower court's determination that these machines are gambling devices per se.*fn2 Appellants, however, argue that the application of the Supreme Court decision in Two Electronic Poker Game Machines, filed after the seizure of the machines in the present case, violates their due process rights to the sense of fair warning that their conduct constitutes a crime, since the machines prior to the decision in Two Electronic Poker Game Machines were not found to be gambling devices per se by this court in Commonwealth v. One Electro-Sport Draw Poker Machine, 297 Pa. Super. 54, 443 A.2d 295 (1981), reversed on appeal by the Supreme Court in Two Electronic Poker Game Machines. We disagree that there has been a retroactive application of the law violative of appellants' due process rights and accordingly affirm.
[A]n unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates precisely like an
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they were deprived of fair warning that their ...